DeFunis v. Odegaard - Washington and Lee University

Court Was.h ...Sup.reme. C.t.
Voted on .................. , 19 .. .
Argued ................... , 19 .. .
Assigned .................. , 19 . . .
Submitted . . ....... . ...... , 19 .. .
Announced ................ , 19 . . .
(v(J.LI /
No. 73-235
MARCO DE FUNIS, ET AL., Appellants
vs.
CHARLES ODEGAARD, PRESIDENT OF THE UNIVERSITY OF WASHINGTON, ET AL.
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Powell, J ... . . . .. ... . . ....... .
Blackmun, J ................. .
Marshall, J . ................. .
White, J ..................... .
Stewart, J ................... .
Brennan, J................... .
Douglas, J .................... .
Burger, Ch. J .... . ........... .
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October 12, 1973
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SUPPLEMEMTAL MEMO
No. 73-235
De Funis, et al. v. Odegaard
1.
I think this case is
a class action.
an~s~.
pro~~y ~ot.
This is not
The plaintiffs were the student, fuis wife
The student was, pursuant to the order of
the state trial court, admitted to the law ~ school he
desired to attend over a year ago.
He may well graduate
before this Court could hear this case.
_______- - -
---------....___
Given that
De Funis can no longer prove injury, I think he's the
---
wrong plaintiff to assert the constitutional issue he
wants to have resolved.
-2-
2,
This is not
an appeal,
,.
No state stuatute is
directly M1 involved. I suppose one could dream f up an
....__argument that a state statute somewhere provides for (and
delegates the power
a.
for) administration of the state
school system, and this lawsuit indirectly at least involves
that statute.
weight.
But a reed that slender won't bear the
The Court should . . read its appeal
jurisdi~n
as narrowly as possible in light of today's case loads,
So, no matter what your decision on whether to hear this
-----
case, dismiss it as not properly an appeal - and treat it
--------(The parties obviously saw this
as a cert.
coming.
The
opening submission, for example, is styled "Jurisdictional
Statement/or in the Alternative Petition foJcertiorari" )/ .
3,
I would deny cert as well (thus my recommendation
is to dismiss and deny).
similar . . issues before.
The Court has denied cert on
See p. 7 of cert pool memo.
If the Court wants to take one of these racially-benign/
compensatory cases, I would wait for one in the which
the court below went the way of the dissent in this case ,
/
S.ccr··1an
Mr. Justice Stowart
Mr. Justice White
Mr. Justice Mar'ih3.ll
Mr. JUG~iC" Bhclcmun__MJ.". Ju.,tloc Powell
Jus ..ice Behnq_uist
2nd DRAFT
SUPREME COURT OF THE UNITED STAT~·
From:J Dou6las; J.
MARCO DE FUNIS ET Ar.. v. CHARLES ODEGAARD,
PRESIDENT OF THE UNIVERSITqiUF~late :·_ _ _ _ __
WASHINGTON, ET AL.
Reoiroulated:
ON APPEAL FROM 'l'HE SUPREME COURT OF WASHINGTON.
No. 7:3-2%.
Drcidcd Non'mbcr -, 19i3
Mn. JusTICE DouGLAS. with whom MR. JusTICE BRENconcurs, dissenting.
This is an appeal from the Washington Supreme Court
brought by a student at the Law School of the University
of Washington. The appellant was initially rejected for
admission at the Jaw school after ·being placed upon the
school's "waiting list." He then brought this action in
state court, contending that, because of a law school
policy of giving favorable treatment to applicants from
minority groups, he "·as denied the equal protection of
law. The appellant is white. The state trial court
granted appellant relief, and issued an injunction commanding the law school to admit him. Because of this
order he was admitted. Subsequently the Washington
Supreme Court reversed the trial court, sustaining
against the federal constitutional challenge the law
school's admissions policy. I stayed the mandate of the
Washington Supreme Court pending disposition of this
appeal, and the appellant has therefore remained enrolled
at the law school, where he is now completing his final
year. 28 U. S. C. ~ 1257 (2) provides for appellate jurisdiction in this Court of state court decisions sustaining
the validity of a state "statute" against a federal constitutional challenge. But putting aside the question of
whether the law school's admissions policy is a state
"statute" for this purpose, see H amillon v. Regents, 293
U.S. 245 (1934), we could treat the papers as a petition
NAN
2
DE
FU~IS
v. ODEGAARD
for certiorari and grant review on that basis. 28 U.S. C.
§ 2103. This is the course I would follow.
The 11etition raises an important question of constitutional la ''" which this court has not explicitly decided.
The ]a\Y school. which has no history of de jure discrimination, has voluntarily adopted a program under
which minority applicants-Blacks, Chicanos, American
Indians, and Filipinos-are treated separately in the
admissions process and arc given special consideration.
This may be a state sanctioned racial classification,
carrying the heaviest possible presumption of unconstitutionality under the Equal Protection Clause. Loving
v. Virgim:a, 388 U.S. 1. 10-11 (1967). Yet the purpose
of this program is to rectify the long history of discrimination "·hich has resulted in the chronic underrepresentation of these groups in the law school and the legal
profession generally, and the court below observed that
the goal of this policy "is not to separate the races, but
to bring them together." We said in the context of
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 16 (1971), that it would be within the broad
discretionary authority of a school board to adopt such
a policy to prepare students to live in a pluralistic
society.
The program adopted by the law school here is
not unique; similar programs have been adopted by
many other schools. Widely differing views have been
expressed, compare O'Neill, Preferential Admissions
Equalizing the Access of Minority Groups to Higher
Education, 80 Yale L. J. 699 (1971), with Graglia, Special
Admission of the "Culturally Deprived" to Law School,
119 U. Pa. L. Rev. 351 (1970). We should grant certiorari and put the case clown for argument and decidethe important issues presented. <C·
;:In an Arizonn, cnse rai~ing a like question, Johnson v. Committee
on Examinations, 407 U. S. 915, I dissented from denial of certiorari.
(
Preliminary Memo
(,_
October 19, 1973 Conference
List 1, Sheet 1
No. 73-235
DE FUNIS, ET AL.
(Law School
Applicant)
v.
ODEGAARD
(University of
Washington
Officials)
1.
Timely
Appeal from the
Washington Supreme Court
(Joint majority by Finley,
Hamilton, Stafford, Wright,
Lyttle, Utter; Wright, with
Stafford, concurring; Hale,
C .J., with Hunter dissenting; Hunter, with Hale, dissenting) - State Civil
The Washington Supreme Court (6-2) reversed a trial
court judgment ordering appellees, University of Washington
officials, to admit appellant as a first-year student at the
University of Washington School of Law.
I "----'
This appeal presents
the question whether a state law school may, consistent with the
- 2 Equal Protection and Due Process Clauses of the Fourteenth
Amendment, give preference for admission solely on the basis
of race to certain minority applicants to the exclusion of
other qualified applicants.
2.
FACTS:
_I
Appellant De Funis was one of 1,601 applicants
for admission to the first year law school class of approximately
150 students entering in September 1971.
Based upon a formula
devised by the admission committee that takes into account LSAT
scores, the applicant's junior senior grade.
point average, and
average writing test scores, appellant was assigned a Predicted
First-Year Average (PFYA)
of ~
He had a 3. 71 grade point
average in a 4.0 system, a 582 average LSAT score, and an
average writing test score of 61.
(In addition, he was graduated
from the University of Washington magna
~~
laude and Phi Beta
Kappa; at the time of his application, he was working full-time
and had earned 21 hours of straight A in graduate school, with
three hours of incomplete.)
Appellant's PFYA placed him in the
middle group of applicants and just below those considered most
promising with a PFYA of 77.
Those with a 74.5 or lower PFYA
were in the third and lowest priority group and were generally not
given full consideration by the admissions committee.
Nevertheless,
1/
- The Jurisdictional Statement also challenges this minority
preference admissions policy on the ground that it violates 42 U.S.C.
§ 2000d, which prohibits discrimination or exclusion on the basis
of race from any program or activity receiving federal financial
assistance. Although appellants) claim that they raised the issue
in- the state Supreme Court, that court never reached or decided the
question.
- 3 -
2/
were given special attention
all
,__ files of minority applicants
..._
by the full committee, regardless of the PFYA.
In its "Guide for Applicants," the law school noted that
"[a]n applicant's racial or ethnic background was considered as
one factor in our general attempt to
conve r~-
formal credentials
into realistic predictions [of an] • • • applicant's ability to
---~--------
make significant contributions to law school classes and the
community at
la~ge,"
J.S., at A-10.
the general overall criterion for selection.
This policy reflected a University-wide policy
which sought to eliminate the continued effects of past segregation
and discrimination against these and other disadvantaged racial
3/
and ethnic minority groups. -
In effectuating this policy, the
admissions committee followed certain procedures that were the main
focal point of appellants' attack.
First, less weight was attached
2/
- Minority applicants were defined by the admissions committee as
Black Americans, Chicano Americans, American Indians, and Philippine
Americans . Asian Americans were not placed in this special category
since a significant number of them could be admitted on the same
basis as general applicants.
11
'
'
"Thus, the University sought to
achieve a reasonable representation
within the student body of persons
from these groups which have been
historically suppressed by encouraging their enrollment within the various
programs offered at the University .
Policies for admission of minorities
throughout the University recognized
that the conventional 'mechanical'
credentializing system does not always
produce good indicators of the full
potential of such culturally separated
or deprived individuals, and that to
rely solely on such formal credentials
could well result in unfairly denying
to . qualified minority persons the chance
:~ ~ f~~~~~: :::e --~~u~~;-~~~~~ ~~pr.or~u!:itie ~ . ~ ~
- 4 to the PFYA in making a total assessment of the relative ability
of a minority applicant to succeed in law school.
Secondly,
minority applicants were directly compared to one another but not
to applicants outside of the minority group.
Although the law
school had no fixed minority admissions quotas, the law school
included within its admitted group minority applicants whose
PFYA's were lower than those of some other applicants, although
the school officials maintained that all were qualified in the
sense that they were capable of successfully completing the law
school program.
Appellant was placed in the fourth or lowest quatrile of
a waiting list of 155 applicants.
Of the 200 applicants invited
to attend the law school, 74 had lower PFYA's than appellant; 36
of these 74 were minority applicants, 18 of whom actually enrolled
in the class.
Twenty-nine applicants with higher PFYA's than
appellant were denied admission.
The trial court found that
appellant was fully qualified and capable of satisfactorily
attending the law school.
The trial court then concluded that,
in denying appellant admission, the University discriminated
against him and denied him equal protection under the Fourteenth
4/
Amendment and that he should be admitted. -
4/
-At the time of oral argument in the Washington Supreme Court,
appellant was a member of the class of 1974 at the law school.
The Washington Supreme Court did not consider the case moot "[d]ue
to the conditions under which [appellant] was admitted and the
great public interest in the continuing issues raised by this appeal. • • . " J .s., at A-14. This mootness assessment is, of coulSe,
always subject to reconsideration by this Court. There is no indication in the briefs that appellant is not still in attendance at
the law school.
- 5 -
3.
DECISION OF THE WASHINGTON SUPREME COURT:
In a
34-page opinion summarized below, the Washington Supreme Court
reversed the trial court and held that the minority admissions
-
policy of the law school, and the denial of admission to ap"----
pellant, violated neither the Equal Protection Clause of the
Fourteenth Amendment nor Article 1, § 12 of the Washington State
~
---57------------ -----
Constit ution. -
(a) The court found that appellant had standing to
bring the action.
It was not persuaded by appellees' contention
that the law school would not have been able to accept appellant,
even if no minority students had been admitted, because all seats
would probably have been filled by others higher than appellant
on the waiting list.
The Washington Supreme Court felt that,
regardless of whether it was completely problematical whether
· appellant would have been admitted, under this Court's prior
standing decisions, appellant's "interest in this litigation clearly
constitutes the requisite "personal stake in the outcome of the
controversy necessary to request an adjudication of the merits of
this case."
J.S., at A-15.
(b) Appellant did not make out a meritorious equal
protection claim.
(1) The Washington Supreme Court first held that the
consideration of race as a factor in the admissions policy of a
5/
- Appellants do not challenge here another holding that the law
school is not required under the Washington constitution or
statutes to give an admission preference to resident over nonresi dent applicants.
- 6 -
state law school is not a per
~
violation of the equal protection
clause of the Fourteenth Amendment.
Brown v. Board of Education,
347 U.S. 483 (1954), did not hold that all racial classifications
are per se unconstitutional but only those
/that are invidious, i.e. those that stigmatize a racial group with
the stamp of inferiority.
----
The preferential- admissions policy is
clearly not a form of invidious discrimination since the policy's
~
---------------
goal is to .bring together and not to separate the races.
Further-
more, the Supreme Court has clearly held that in some circumstances
a racial criterion not only may but must be used by public educational institutions in bringing about racial balance.
~·
Green
v. County School Board, 391 U.S. 430, 437-40 (1968); Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971);
North Carolina State Board of Education v. Swann, 402 U.S. 43, 45
(1971).
The Constitution is color conscious to prevent the
perpetuation of discrimination and to undo the effects of past
6/
segregation.
6/
"Clearly, consideration of race by
school authorities does not violate the
Fourteenth Amendment where the purpose
is to bring together, rather than
separate, the races. The 'minority'
admissions policy of the law school,
aimed at insuring a reasonable representation of minority persons in the
student body, is not invidious. Consideration of race is permissible to
carry out the mandate of Brown, and, as
noted, has been required in some circumstances:' J.S., at A-21.
- 7 The Washington Supreme Court was unwilling to
accept appellant's argument that these above cited cases were
inapposite here since none of the students there were deprived
of an education by the plan to achieve a unitary school system.
In a key ruling, the court stated that "the denial of a
'benefit' on the basis of race is not necessarily a
per~
vio-
lation of the Fourteenth Amendment, if the racial classification
is used in a compensatory way to promote integration."
J.S., at
A-21, citing Porcelli v. Titus, 431 F.2d 1254 (CA 3 1970), cert.
denied, 402 U.S. 944 (1971) (suspension of ordinary promotion
system upon racial considerations); Carter v. Gallagher, 452 F.2d
315 (CA 8 1971), cert. denied, 406 U.S. 950 (1972) (affirmative
court order requiring one out of every three firemen hired to be
a minority until at least 20 minority firemen have been hired).
(2) Because a racial classification was involved and
because the minority admissions policy was certainly not benign
as to non-minority applicants like appellant who are displaced by
it, the Washington Supreme Court required the law school to
demonstrate that its consideration of race in admitting students
--
1
'-'-
was necessary to the accomplishment of a ~ ompelling state interest.
(c) The Washington Supreme Court found three compelling
state interests here.
"In light of the serious underrepresentation of
minority groups in the law schools, and considering that minority
( "----"
\_ i
groups participate on an equal basis in the tax support of the law
school, we find the state interest in eliminating racial imbalance
- 8 -
within public education to be compelling."
J.S., at A-24.
The court disagreed with appellant that any past discrimination
here has been de facto and not de jure, thereby precluding the law
school from attempting to remedy racial imbalance in the student
body and throughout the legal profession.
ll
-- The state also has an overriding educational
interest in providing all law students with a legal education
that will adequately prepare them to deal with the societal
problems awaiting them upon graduation.
-- The shortage of minority attorneys, and therefore
minority prosecutors, judges, and public officials --represents
an undeniably compelling state interest to encourage minorities
to live within the rule of law.
Not only are these state interests compelling, the
court ruled, but the racial classification here is essential to
their accomplishment.
"[R]acial imbalance in the law school and
the legal profession is the evil to be corrected, and it can only
Zl
"The de jure-de facto distinction
is not controlling in determining the
constitutionality of the minority admissions policy voluntarily adopted by
the law school. Further, we see no
reason why the state interest in eradicating the continuing effects of past
racial discrimination is less merely
because the law school itself may have
previously been neutral in the matter."
J .S., at A-25.
.·
- 9 -
/
be corrected by providing legal education to those minority
groups which have been previously deprived. II
J oS.' at A-26.
It was not enough, as appellants suggested, that the same
objective could be accomplished by improving the elementary and
secondary education of minority students t o· a point where they
could secure equal representation in law schools through direct
competition with non-minority applicants on the basis of the
same academic criteria.
11
•
•
• This would be highly desirable,
but 18 years have passed since the
decision in Brown v. Board of Education,
supra, and minority groups are still
grossly underrepresented in law schools.
If the law school is forbidden from taking
affirmative action, this underrepresentation may be perpetuated indefinitelyc
No less restrictive means would serve the
governmental interest here; we believe the
minority admissions policy of the law
school to be the only feasible 'plan that
promises realistically to work, and promises
realistically to work now.' 11 J .S., at A-27.
(citation omitted.)
---
(c) The Washington Supreme Court disagreed that the
admissions procedures employed by the law school constituted
arbitrary and capricious administrative action.
a factor, it was not the exclusive one.
While race was
The record overwhelmingly
demonstrated that the admissions committee applied predetermined
standards and procedures in selecting students.
Moreover, in
selecting those students most likely to make significant contributions to law school classes and the general community, it was not
arbitrary or capricious to consider race as a factor.
Finally,
the court sharply questioned the assumption that a minority applkant
- 10 -
is ipso facto "less qualified" than a non-minority applicant
who has a higher PFYA.
" • • • In light of the gross underrepresentation of minorities in the legal
system, can it be said with such certainty
as to leave no room for differing opinions
that a white applicant with a higher PFYA
will make a greater contribution to the
law school and the community? We think
not. While the probability of . applicant
achieving high grades in his first year
of law school is an important criterion for
admission, it is not the sole permissible
criterion." J .S., at A-32.
Judge Wright, joined by Judges Finley and Stafford,
concurred in order to express his concern for more complete
published standards for admission to insure not only actual
fairness but the appearance of it as well.
Chief Justice Hale, joined by Justice Hunter, filed a
lengthy dissent that took exception with almost every key
majority position.
First, he felt that the constitution should
always be color blind, regardless of the laudable or benign
social goal sought to be achieved by a racial classification;
the increased minority participation assured by these admissions
procedures inevitably produces a correlative denial of access
to non-minority applicants.
There can be no doubt, the Chief
Justice asserted, that under any measuring system, appellant was
8/
qualified for admission.-
Paradoxically, the law school failed
to apply even "its own vague, loose, and whimsical admission
standards."
8/
J.S., at A-39.
Furthermore, the committee was working
-"How, under any rational admissions policy, could an outstanding
student, one of superb academic achievement, be denied admission to
his state university law school while others, some of them nonresidents and of mediocre academic standing, were admitted?" J .s.,
at . A-42.
. .
- 11 -
under a highly questionable assumption that all of the accepted
minority students were of a lower economic status than appellant.
The dissent also lashed out at the potentially ultra vires
practice of having unqualified law students sitting on the admis-
?
sions committee and exercising controlling power over the careers
and even the lives of many potential s tu.dents.
Canvassing all those applications in the trial court
record, the Chief Justice noted the "curious aura of civil,
political or community 'activism: as it is sometimes called, surrounding the recommendations for admission or rejection."
45.
Id., at
He further observed that the records of students accepted
disclosed extraordinary and inexplicable variations in their
qualifications.
A Ac;-J It~
t() /,t'e-. whJ
jt; i~~ ~CJL
~~
2
"But an inspection of these files, in my
judgment, fails to show any consistent
policy on admissions at which a pre-law
student could aim his career. If he is
intelligent, works hard, and achieves high
grades, his place in the law school class
may be preempted by someone with lesser
grades but who is engaged in what is described as 'community activities,' or is
otherwise described as a student activist.
Or, if he is engaged in community activities
and still attains high grades through diligence and intelligence and long hours at the
books, his position may be taken in the
entering class by one who has neither engaged
in 'community activity' nor achieved high
grades but, nevertheless, has made a high
LSAT score. Or, even if he studied hard, is
intelligent, and placed high in grades, LSAT
and_PFYA, and engaged in what ar2 called
community activities, his place might still
be awarded to a minority student who has done
none of these. All of these inequities are,
I fear, bound to foster a spirit of antiintellectualism in the heart of what should be
an intellectual center." J.S., at A-49.
:
- 12 The dissent sought to distinguish the majority's
reliance upon the busing decisions.
In those cases, there was
a procedurally sound administrative determination that every
child, under the plan and the constitution, would gain an
integrated and thereby superior education
no other child.
a~
the expense of
Here the putative benefit to one group is pur-
chased at the expense of another, a practice struck down by a
federal district court in a similar situation involving employment
and the promotion of minorities by way of preference in school
administrative and supervisory positions.
Francisco Unified School District,
1972).
Anderson v. San
F. Supp.
(N.D. Calif.
Finally, the Chief Justice envisioned several alternatives
to preferential admissions policies that satisfy fairness and
equal protection standards.
See J.S., at A-54 to A-SS.
Judge Hunter, joined by C.J. Hale, issued a brief dissent
that characterized the committee's action as arbitrary and
~~
capricious and in direct contravention of federalAstate equal
protection guarantees.
4.
CONTENTIONS:
(a) Appellant renews the arguments rejected by the
Washington Supreme Court.
He emphasizes that the racial classi-
fication here is hardly benign as to him and that whenever a
classification is based upon race, it is automatically suspect.
Special privileges and immunities have been dispensed to some but
denied to him.
. .
- 13 (b) On the merits, appellees rely upon the rationale
of the court below to support their argument as to lack of a
substantial federal question.
Procedurally, they suggest that
the appeal be dismissed for wa .nt of jurisdiction under 28 U.S.C.
§
1257(2), since appellants challenged no Washington statute but
only a rule or policy.
Contrary to the authority cited by ap-
. :;_!
pellants in their Jurisdictional Statement,
the admissions
policy should not be equated with a "legislative act" such as that
considered in Hamilton where the challenge was to the board of
regents "rule" requiring all male students enrolled in the
University of California to take certain military science courses.
The real act attacked here, according to appellees, is the dis(
'-
cretionary one taken on behalf of the board of regents by the law
school admissions committee.
Appellees urge this Court to rule
that "[d]iscretionary actions taken by an admissions committee of
a state university are not acts 'legislative in character' which
would give this Court appellate jurisdiction under the rule of
Hamilton • • • • "
Opposition, at 8.
Appellees further maintain that the judgment rests on an
adequate non-federal basis, viz, lack of standing since appellant
would not have been admitted even if the minorities were excluded.
Appellees distinguish Peters v. Kiff, 407 U.S. 493 (1972) (white
defendant has standing to challenge the systematic exclusion of
negroes from the grand and petit juries), and Trafficante v.
9/
-See Hamilton v. Regents of the University of Calif., 293 U.S. 245
(1931); Sultan Railway and Timber Co. v. Deft. of Labor and Industries of the State of Washington, 277 U.S. 35 (19· 0i Lake Erie
Railroad v. Public Utilities Comm 'n., 249 U.S. 422 (1~ .'? ).
- 14 Metropolitan Life Ins. Co., 409 U.S. 205 (1972) (white and nonwhite tenants have standing to challenge lessor's discriminatory
leasing practices against non-whitesh on the ground that the values
of a pluralistic society and diversification among races are clearly
permissible in the interests of majority and minority races alike.
Their standing argument is not defeated, . appellees insist, by the
Washington Supreme Court's failure to decide the factual issue of
whether appellant would have been admitted had there been no
minority admission program.
"Without a sustainable finding that
De Funis would in some demonstrable way be affected by whether he
won or lost the litigation, the case lacks an essential ingredient
to a case or controversy cognizable or appropriate for decision by
this Court."
Opposition, at 11.
(c) The Anti-Defamation League of B'nai B'rith has filed
an amicus curiae brief in support of appellant.
On behalf of the
amicus, Professor Bickel argues that the decision below misreads
and misapplies, if it does not squarely conflict with, prior decisions of this Court concerning the use of racial classifications.
The Supreme Court cases relied upon by the lower court sanctioning
racial classifications have uniformly shared two characteristics
which are signally absent here.
First, they have sanctioned the
use of racial criteria as a remedy fashioned to cure unquestioned,
specific previous discrimination based on race.
Secondly, these
cases have imposed no new deprivation on anyone else -- the remedy
created no new wrongs.
Here, there is no record of prior dis-
crimination by the state law school.
The amicus argues that this
- 15 Court's decisions hold that "a compelling state interest
sufficient to justify a racial classification can be shown
only if the classification is undertaken in the course of
administering a remedy for proven prior discrimination, or at
least if, while serving an allowable state r urpose, it imposes
no deprivation on anyone else."
Brief for Amicus Curiae, at 16.
The .amicus further argues that the decision below distorts
the remedial device of "affirmative action."
Because of its
increasingly critical importance to the achievement of social
justice and the development of harmonious race relations under
law, the Washington Supreme Court decision threatens to destroy
its utility.
5.
DISCUSSION:
The amount of attention given to this
case in this preliminary memorandum is a barometer of the
importance attached to the issues presented.
cedural
.....___.
issu~
are sticky.
The threshold pro-
Assuming the controversy is not moot
and that appellant has standing, both of which are close questions,
there remains the statutory question of a state "statute" under
28 U.S.C. § 1257(2), which appears from reading the cases to be
o en question.
See Hart & Wechsler, The Federal Courts
and the Federal System, 641 (2d ed. 1973).
Even if an appeal is
improper, the case would be here on certiorari.
In that pos~e,
it is difficult to deny that the issues raised are
~J
not~of
cendent importance in a constitutional and societal sense.
transThe
case is a veritable can of worms, full of legal questions of first
impression and replete with ramifications for related areas, many
'
.
- 16 of which I suspect are as yet unforeseen.
For example, must half
of the entering class of Yale University, or better yet, UCLA be
women?
!:::E!!
tional?
"benign quotas" in labor union contracts unconstitu-
Can Indians be constitutionally preferred over equally
qualified non-Indians for Bureau of Indian Affairs jobs?
Un-
doubtedly, the Court may someday have to take on these issues.
One wonders, however, whether this is the case "to embark the judiciary on a long and difficult journey to such an uncertain destination."
Branzburg v. Hayes, 408 U.S. 665, 703 (1972).
There is a response.
10/10/73
ME
0 1 Donnell
Opinion in Jurisdictional Statement
November 8, 1973
Owens
DISCUSS
No. 73-235
De Funis v. Odegaard
The Washington state "compensatory law . . school admission"
case.
As you know, this case was relisted to allow the parties
to brief, at the Court's request, the question of mootness.
De Funis, the student, is due to graduate in June of 1974.
Due to the impact of a state trial court injunction in the
student 0 s favor (kept in force, in essence, by a stay order
issued by Justice Douglas), De Funis has been allowed to go
to law school.
He is now part way through his third and
final year,
The Washington SC ruled in favor of the law school.
That is, the state highest court ruled that under the 14th
Amendment the state could continue its compensatory admission
policies.
Thus, under the law of Washington as it now
stands, the law school could lawfully have refused to admit
-2-
De Funis.
But, due to the effect of the trial court
injunction initailly in the student's favor and to J.
Douglas' . . stay order, it is very likely that De Funis
will finish • his law school career even though under the
law of Washington as it now stands, De Funis need not have
been admitted.
De Funis argues that the case is not moot for 2 reasons.
One, he says that the injunction and stay that have kept him
in school will abate if the Court denies his Petition.*
Thss, nothing, technically speaking, would prevent the
University from terminating his enrollment.
De Funis says
that termination of his enrollment is "not an empty fear."
He says that the University has asked him to submit a
request, to be acted on by the faculty, for ,a permission to
remain in school.
(He does not say whether he has acceded
to that request.)
Furthermore, De Funis says that he knows
of no basis for the statement in a footnote of the statJs
brief that De Funis will be allowed to remain in school-...
until the end of this academic year, regardless of the outcome
of the Court's decision whether to hear this case.
Second, De Funis runs the Moore v. Ogilvie "capable of
..repetition yet evading review"• argument.
He also cites
*Note that De Funis refers to his jurisdictional
,.
,
submission as a petition, confirming the thought that
this case should be treated as a cert.
-3-
the abortion cases, Roe v. Wade, etc.
He is quite right
that those precedents are relevant, but they contain an
element of discretion on the part of this Court that . .
he understandably fails to emphasize.
The state, which won before the highest state court,
also argues that the case is not moot (?).
That is a bit
puzzling, since the state also believes that the judgment
below should not be reversed.
howl it wins?
Why would the state care
Can't it be satisfied with a favorable
judgment from the highest state court?
Is .a judgment from
f't~~a.·h......
this Court essential to prevent otherAstudents from litigating
the same issue in the federal courts located in Washington,
which of course would not be bound by the Wash SC's reading
of the feeeral law that controls this case?
Certainly the
state might rationally have waited for that problem to
arise (which might be never), rather than urging this Court
to take the case and ..... thus subjecting to some risk the
favorable judgment it received below.
In any event, the state argues that the case is not moot,
because if this Court does not accept jurisdictiob, "Mr.
De Funis will be required to re-apply for admission to complete
his law school education at the University of Washington law
school, and the University of Washington will have to
exercise its lawful discretion in acting on that request."
The law school apparently operates under a quarter system.
The q!Fitical decision point ~ would apparently be
between Feb. 20, 1974 and March 1, 1974, which is the
-4-
..
registration period for Spring quarter, 1974--Mr. De Funis'
last quarter before the award of his J.D. degree.
Although the state says that it will have discretion
to decide whether De Funis is to
DV\
continu~to
I think this is a threat to be taken lightly.
graduation,
"Counsel
is advised by the Dean of the law• school (and we both
believe that this . . . . Court should be advised) that even
.
if dAscretion with respecta to the continuance of Mr.
De Funis' admission to the law school is ••••••..........~
returned to the university by final termination of this
litigation prior to his registration for a final quarter
of ._ study, it would be most unlikely that the university
would make a
'*
decision preventing him from completing the
balance of._ his course of study for the J.D. degree.
Counsel is further advised by the Dean of the law school
(and we
believe~
this Court should be advised) that if
Mr. De Funis 11 registers for the spring quarter under the
existing order of . . . this Court during the registration
period from February 20, 1974, to March 1, 1974, that
registration would not be cancelled unilaterally by the
university regardless of the outcome of this litigationa."
The state also runs the Moore v. Ogilvie argument,
commenting dryly that "this case illui'grates the possiuility
that it may well take longer to commence a case in a state
trial coutt and follow it through to final resolution by
review and IE , .
*•*•• disposition by .._ this Court than
it takes to complete a three-year law school education."
-5-
As we discussed, I would dismiss and deny,
The decision
below is probablY' right (thus in principle the correct thing
to do is to deny review, without regard to the consequences
to De Funis),
In any event, the Court should not
thro~
itself into this thicket until is has to--when a case going
the other way makes it up here.
Without regard to theory,
it seems to me extraordinarily unlikely that the Dean of
the law scho~-in light of his submissions through counsel
to this Court--is not going to let De Funis fini sh school,
no matter whena the Dean receives word that this Court has
declined review,
simply D & D,
I wouldl say nothing about mootness,;
Conference 11-9-73
Court
Voted on .................. , 19 .. .
Argued ..... . ............. , 19 .. .
Assigned .................. , 19 . . .
Submitted ................ , 19 . . .
Announced ................ , 19 . . .
No. 72-235
£M cus~
De FUNIS
vs.
ODEGAARD
HOLD
FOR
CERT.
JURISDICTIONAL
MERITS
MOTION
AB-
NOT
1--~--+--rS_TA_T--,EM_E_N-rT--t---r-+-----r---ISENT VOT0
Rehnquist, J. . . . . . . . . . . . . . . . . . . . .
Powell, J ........................
Blackmun, J .....................
D
N
POST
DIS
AFF
REV
AFF
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D
ING
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White, J. . . . . . . . . . . . . . . . . . . . . . . . . .J:;:.Y.. f. b:'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ .
Stewart, J ....................... ./.':J:: ~ )~ ...... ................ ...................... .
Marshall, J. . . . . . . . . . . . . . . . . . .
Brennan, J .................... ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ .
Douglas, J .....................
'¥." .~ .... [;\J' .. .. .... .. ... ... .. . ... ... ... ... . .·...... ..
Burger, Ch. J ..................... /v'..
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~u.pt·ttuc <!}trttrt
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20gtJ~,:3
CHAMBERS OF'
-.~usTicE wM . -.~ . BRENNAN, .JR.
November 13 , 1973
RE: No. 73-235 DeFunis v. Odegaard, etc.
Dear Bill:
Please join me in your dissenting
opinion in the above.
Sincerely,
Mr. Justice Douglas
cc: The Conference
Conference 11-16-73
Court ................... .
Voted on .................. , 19 .. .
Argued ................... , 19 .. .
Assigned .................. , 19 . . .
Submitted ................ , 19 . . .
Announced ................ , 19 . . .
No. 73-235
De FUNIS
vs.
ODEGAARD
HOLD
FOR
JURISDICTIONAL
NOT
CERT.
STATEMENT
MERITS
MOTION AB1-----,.--+---,----,---,---+-....---t--,----lsENT VOTG
D
N
/
Rehnquist, J . ..... . .......... .
'/ ""
Powell, J .................... .
'/. ......
"".
Blackmun, J . ................ .
Marshall, J . ................. .
White, J ..................... .
Stewart, J ................... .
Brennan, J................... .
Douglas, J .................... .
Burger, Ch. J . ............... .
RELIST
./
/
"".
.'/......
POST
DIS
AFF
REV
AFF
G
D
lNG
jj/SS
2/12/74
MEMORANDUM
TO:
Mr. Justice Powell
FROM:
John C. Jeffries, Jr.
DATE: February 12, 1974
No. 73-235 DeFunis v. Odegaard
The principal issue in this case is whether
l,.. 11e vo leV\+-
discrimina-
tion in favor of racial and ethnic minorities is unconstitutional under the
14th Amendment. This inquiry can be factored into a number of more
precise questions: Are racial classifications for any purpose per se
unconstitutional? If not, are they always "suspect" classifications,
demanding strict scrutiny under the Equal Protection Clause? If you
decide that so-called benign racial classifications are not per se
unconstitutional but do require strict scrutiny, then you must consider
whether the admission practice followed by respondents in this case was
supported by a compelling state interest. This series of questions may be
a useful way to structure an opinion in this case, but it does not simplify
or refine the root issue of whether discrimination in favor of racial and
ethnic minorities is constitutionally equivalent to discrimination against
such groups.
This Court has not previously considered this issue. The
precedent most closely on point is Porcelli v. Titus, 431 F. 2d 1254
( CA 3 1970), and it supports the position of respondents.
There are many
other decisions ordering affirmative action programs in employment and
-·
2.
education to remedy past discriminatory practices.
~· ~·,
Carter v.
Gallagher, 452 F. 2d 315, 327-331 (CA 8 1972); Castro v. Beecher, 459
F. 2d 725, 736, 737 (CAl 1972). These cases may be read to support
respondents' position, but they may also be distinguished on the ground
that they invsl• eel ihOJI may also lso eiisbhtgalshsd on ilta 8•*••d tJ 1& frL 8IJ
involved remedies for specific prior racial or ethnic discrimination by
---------~'-------~--~--~----------------
the party against whom the order ran. Here there is no evidence of a
Washington Law School. Thus any justification of the present admissions
policy as remedial in nature would hinge on generalized, but undoubtedly
true, assertions about the inequality of opportunity historically suffered
by blacks and other minority groups in this country. Insofar as present
practice is suggestive of the proper resolution of this question, it also
favors respondents' position. Most of the major colleges and universities
in this country do favor black applicants for admission, though I suspect
r--
that most are not quite so overt about it as the University of Washington.
Moreover, the federal government is involved in a variety of ways in an
effort to redress past disadvantages of minorities by affirmative action
at the expense of whites.
For example, there is a statute which allows
the federal government to set aside certain government contracts for
minority-owned enterprises, even thought they may not be the low bidders.
Obviously, none of these factors is controlling. To the extent that the
authorities go one way or the other, they favor respondents, but the
3.
precedents leave you quite free to decide this case as you think best.
On the merits of the issue, I have no firm view.
The various
considerations arrayed on both sides of the question are well stated in
the various briefs filed here, many of which are quite good. In my view
v
the best statement of respondents' case is the brief by Archibald Cox
for Harvard College. I also found the brief by Derrick Bell for the National
Conference of Black Lawyers interesting. A quick survey of the remaining
briefs filed in support of respondent may prove useful, but they add little
to Cox's argument. By far the best statement of the opposing view is
the brief filed by
Alexander~ickel and
PhilipvKurland for the Anti-
Defamation League of B'nai B'rith. You may safely disregard petitioner's
brief as well as those of the other amici supporting his position.
One class of arguments that is repeatedly raised in support of
respondents should be rejected out of hand.
The contention made by Mr.
and Mrs. Cahn in their amicus submission for Antioch Law School and in
the brief of the Legal Aid Society of Alameda County, et al., that various
standard indicators of ability and aptitude, notably undergraduate grades
and LSAT scores, are racially biased is unsupported by reliance evidence
of any description.
This issue was not litigated below and is in any
event quite irrelevant to this case. The question is not whether some
other system of admission might be discriminatory in its effect though
plainly not its purpose, but whether this admissions procedure, which
4.
is admittedly discriminatory in favor of blacks and other ethnic minorities,
is constitutional.
Another red herring is the repeated emphasis on the fact that race
was not the sole factor that determined acceptance, that is, that no blacks
were admitted solely because they were black. If the discrimination cut
the other way, any attempt to justify a preference for whites on the ground
that race was not the only factor considered would be laughable. In this
c
case the respond
ts did not look for economic or cultural deprivation
to determine whether a particularly generous admissions procedure would
apply.
They looked to race.
-
This is a racial classification, m d the fact
that being black did not guarantee admission or that being white did not
necessarily mean rejection seems to me irrelevant.
The question is not
whether race was the sole factor considered by the admissions committee,
but whether this differentiation among applicants, which was admittedly
based on race rather than on any number of associated factors, is
constitutional.
Beyond these two inconclusive comments, I have no firm view of
how this question should be resolved. I am prepared to discuss the case
with you whenever you find it convenient to do so.
JCJjr
ss
TO THE CONFERENC:E1- FYI
v
LAW OFFICES
JOHN P. LYCETTE (1e8!1)
L.YCETTE, DIAMOND & SYL.VESTER
JO S EF DIAMOND
FOURTH FLOOR HOG£ BUILDING
JOHN N . SYLVESTER
E ARLE W . ZINN
SEATTLE
98104
L YL E L . IVERSEN
(AREA 208) 823 · 1330
H ER MAN HOWE
JOHN P . LYCETT£ 1 JR .
S IMON WAMPOLO
February 28, 1974
EUGENE G . CUSHING
ALBERT 0 . PRINCE
(0~ COUNSEL)
WILLIAM J . MILLAR0 1 J R .
RI C HARD M . FOREMAN
ROBERT E . RATCLIFFE
CRAIG S . STERNBERG
EDWIN J , SNOOK
MALCOLM 0 . KATZ
JOHN T , PETRIE
Honorable Warren Burger
Chief Just ice
United States Supreme Court
Washington, D. C.
Re: DeFunis vs. Odegaard
No. 73-235
Dear Mr. Chief Justice:
Pursuant to your request, !.wish to advise that Marco
DeFunis, Jr. filed his registration with the University of Washington law school on Tuesday, February 26, 1974, which consisted of filling out a computerized form listing the courses that
he desired to take for his f.ina l quarter in law school.
Please make this information available to Justice Marshall
as requested by him.
·.·' .
Please also apologize to Justice Marshall for me, I was
pressed for time and may have been a little discourteous.
.
1Tn:br
c c : Mr. James D. Wilson
Yor
l
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sincerely,
· ..,..
(
~os ef
m ond
Attorney for Marco DeFunis, Jr.
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March 21, 1974
No. 73-235 DeFunis v. Odegaard
Dear Potter:
Please join me in your Per Curiam.
Sincerely,
Mr. Justice Stewart
lfp/ss
cc:
The Conference
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CHAMBERS OF
JUSTICE HARRY A. BLACKMUN
March 21, 1974
/
Dear Potter:
Re:
No. 73-235 - DeFunis v. Odegarrd
Please join me in
the~
curiam you have prepared
for this case.
Sincerely,
Mr. Justice Stewart
Copies to the Conference
/
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CHAMBERS OF
JUSTICE WILLIAM H . REHNQUIST
March 21, 1974
Re:
No. 73-235 - DeFunis v. Odegaard
Dear Potter:
Please join me in the per curiam you have prepared.
//
Sincerely,
,v/
lt'(\;
Mr. Justice Stewart
Copies to the Conference
...
No. 73-235 DE FUNIS v. ODEGAARD
Argued 2/26/74
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1 March 1974
SUPPLEMENTAL MEMORANDUM -- DeFunis v. Odegaard
Yesterday's luncheon discussion concluded with general
agreement on the following points.
First, the Fourteenth Amend-
ment's guarantee of equal protection of the laws addresses the
validity of legislative classifications (and other classifications
supported by state action) rather than merely the protection of
certain groups of citizens.
This position is consistent with
the general development of the Equal Protection Clause by this
Court.
It is well established, for example, that a classification
that is irrational or that burdens a constitutionally protected
fundamental interest runs afoul of the Equal Protection Clause
even though it does not deal with identifiable groups of citizens.
Second, the "compelling state interest" test or "strict
scrutiny" approach is a judicially-created concept designed to
give special force to the Fourteenth Amendment's protection of
certain historically disadvantaged groups, most notably blacks.
It is premised on the perception that when the state seeks to act
in a way that works to
~he
especial detriment of a group that has
long been an object of discriminatory treatment, it must meet
a higher burden of justification than would otherwise be required.
All doubts are to be resolved against the snate , in such cases.
At least as applied to race, this view that the "compelling state
interest" test is only applicable to the protection of certain
groups rather than to · certain classifications is not consistent
with the language of many precedents that speak in terms of
"racial classifications."
It may be reconciled with the precedents
as being consistent in principle, but it does involve the enunciation
of new law.
1. •l:;e·'
2.
Third, it therefore follows that the strict scrutiny standard
is inapplicable to the
instan~
case.
The admissions policy of the
Washington Law School does involve overt racial discrimination,
but it cuts in favor of blacks.
The point is not that this dis-
crimination is benign in any general sense (which I think is a
misconception) but rather that it is benign with regard to those
historically disadvantaged groups for whom the "compelling state
interest'' test was devised.
because he was white.
DeFunis was discriminated against
As a member of the white race he cannot claim
the protection of the strict scrutiny standard of review.
In the
words of Rodriguez, whites do not "command extraordinary protection
from the majoritarian political process."
Thus, although the
constitutional guarantee of equal protection of the laws is applicable to this case, the "compelling state interest" test is not.
Fourth, the correct test is therefore rational basis, and
this is the only standard by which voluntary racial discrimination
in favor of blacks may be judged.
The admissions policy at issue
here clearly passes muster under this standard.
I think it important
to recognize, however, that if you accept this analysis, there is
no basis for treating any voluntary reverse discrimination, including
some instances that will seem a good deal less attractive than the
instant case, on any basis other than rationality.
Thus a. quota
would have to be approved unless it were irrational .or unless it
could be seen to discriminate against blacks, in which case strict
scrutiny would apply.
I urge you to consider this consequence
of the proposed analysis at this point, because I believe you will
find that there will be no principled basis for distinguishing this
case from a later case that involves a not irrational quota.
Of
course, acceptance of this analysis would not in any way imply that
the constitution requires quotas or any form of reverse discrimination,
except in the well-established circumstance of a remedy for specific
acts of discrimination by the party against whom the order runs ,
but only that the constitution permits them.
JCJjr
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Who 11Vill Pay for ihe Injustice of the Past?
--------···-~
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The Legality of Racial Quotas
:,
,,
'·
., I
expense of Marco DeFunis. Constitutional rights are in dividual, and he cannot be penalized for higher ends. The
law may consider race in order to undo specific segrega ·
tion schemes, as in the South, but not just to counter ~.
generalized disadvantage.
,
The strongest '·statement of that position came in the .. '
Anti-Defamation League's brief, written by Professors Philip
B. Kurland of the University of Chicago and Alexander M. - ~
Bickel of Yale. It said, "the country had bE:'en taught for a
generation that racial discrimination was immoral and unconsti1ulional. Now this is to be unlearned and we are told
that this is not a matter of fundamental principle but only
a matter of whose ox is gort>d. Those for whom racial equality
was demanded are now to be more equal than others."
Some Jewish groups, which fought years Rgo against '
quotas that limited their numbers at universities, see a
quota system slipping in again in benign guise. But
groups of minorities and women, including Jewish women,
fear that a victory for Mr. Defunis would end any practical hope of catching up with the preferred position of
while males in America. Not only university places but
the fate of special employment programs for women and '
minorities could be at stake.
By ANTHONY LEWIS
"Our Constitul:ion is color-blind, and neither knows nor
tolerates classes among citizens."
-Mr. Justice Harlan, dissenting
in Plessy v. Ferguson, 1896.
When the Supreme Court held racial segregation in the
public schools unconstitutional,. in J 954, many believed that
the ideal of the first Justice Harlan had at last triumphed.
From now on, they thought, the Jaw would have to deal
with Americans as individuals, not on such a group base as
their race. Twenty y.ears later Americans are wiser and sadder.
·It has been realized, slowly, that there js a certain unreality in telling people who have been the victims of discrimination for centuries that they may now compete at
the same starting line for jobs or education. That abstract
equality is unlikely to lessen the •terrible disparities of income and status in this country in any foreseeable time.
The Federal Government and numerous other institutions
have therefore underlakE:>n programs of "affirmative action"
i.o aid those disadvantaged by history. But in doing so they
may necessarily violate the rule of color-blindness. Is that
constitutional?
Last week the problem was put ·to the Supreme Court. The
case involved Marco DeFunis Jr., a Phi Beta Kap•pa grwuate
of the University of Washington in Sl'-l.ltLle who was !~used
admission to its law school in September, 1971. His al)r.itude
test scores were higher than those of 37 minority studtotsblacks, Jnclians, Chicanos-who did get in. Mr. Det<unis
sued, charging that he had been the victim of reverse racial
discrimination.
Powerful forces saw thelir interests at slake in the case.
-.1 Thirty friend-of-the-court briefs were filed, an extraordinary
/ number. The National Association of Manufacturers and the
A.F.L.-C.I.O. were for Mr. DeFunis, as was the Anti-Defamation League of B'nai B'rith. The American Bar Association,
Harvard University, the National Council of Jewish Women
and the Association of American Law Schools were among
those supporting the University of Washington's policy.
One strong inte-rest is the right of a university to shape
its own student body as it wishes, not alone by an automa·tJic standard of test scores. Pror. Archibald Cox, representing Harvard, warned against the danger of "substituting
an iron rule of law for the discretion of academic authorities to make a conscious selection of qualified students from
the greatest variety of cultural, social and economic backgrounds."
· A generation ago, Mr. Cox said, variety may have mE:>ant
bringing Californians and farm boys to Harvard. Now the
concept of diversity has moved from the regional to bringing in "disadvantaged" groups. The theory was and is that
variety benefits all students, majority and minority.
The Attorney General of the state of Washington, Slade
Gorton, irl arguing for his law school's admission system,
added a broader social interest: increasing the tiny number of minority lawyers in the state and in this country,
thus helping the bar to Jive up to its respons-ibilities and
"advancing the pluralistic society."
The Supreme Court of Washington Stale, which upheld the
law-school admissions polic.y, said flatly that "the Constitution is color conscious to prevent the perpetuation of
discrimination and to undo tht> effects of past segregation."
Mr. GorLOn said that only 12 of :~.812 Washington Law
School graduates from 1902 to l9G9 were black.
To all that, the other ~ide answ<'rcd, in effect: Ynur policy
goals may br wise. but they should not be achievE:'d at the
Tough Intellectuar Is~ues
There are also tougfl intellectual issues too numerous for
di11cuss\on. How fair are aptitude tests? How accurately
do they forecast legal carecr5? Are university admissions to
be based on grades alone, without reference to character .
and experience?
And there are practical considerations of great difficulty.
For one, if Washington wants more minority law students
and cannot displace Mr. DeFunis, what does it do? There
were 1,600 applicants in his year, for 150 places.
The nine Justices showed an intense interest in the argument of the DeFunis case, intervening with many questions.
Some seemed to show doubts about the racial consciousness involved in this admissions policy, as when Justice
Potter Stewart asked, "What kind of American" Mr. DeFunis
was. (His la\vyer said his parents were Sephardic Jews.) "'
But Justice Harry Blackmun raised the example of a state
wanting doctors in remote areas and therefore favoring medical school applicants who wanted to be general practitioners
out there. He said he was indicating the possible role of
"the needs of the community."
Perhaps most significanlly, Justice j..ewis F. Powell ob- ~
served that the Washington law school, in going beyond
test scores, apparently raises factors other than race-em·
ployment records and personal recommendations, for exam·
pie. He asked Mr. DeFunis's lawyer, Josef Diamond, whether ·
"formal grades are the only thing that can be considered."
The answer was "no."
That exchange ~uggcsts that the Court is not going to
clamp any "iron rule" on university admissions, eliminating discret·ion to seek varied student bodies. On the other
hand, it is probably safe to prediot that the Court will not
approve a frank quota system-one in which all admissions
are based on grades except for a disadvantaged group.
Some experienced observers of the Supreme Court. think
it will in fact duck the great issues in the DcFunis ca~e.
concluding that the record does not clearly establish whether
this was a case of discretion or quotas. That would leave
time for more state and local rxperimentalion on these hard
problems. And Marco DeFunis would still be all right. He
was admitted to the Washington law school after •the
State Supreme Court upheld the school's policy, and he is
expected to graduate in May .
. -•
ROUGH DRAFT -- No. 73-235, DeFunis v. Odegaard
The mootness doctrine has its genesis in the Article III requirement of "case or controversy. " North Carolina v. Rice, 404 U.S.
244 (1971).
As Stern and Gressman have stated, "[t ]he Court has
consstitutional jurisdiction only over actual cases and controversies,
between adverse interests, with respect to which the Court's judgment
will be effective. " Supreme Court Practice, at 587.
The Court may
lose jurisdiction over a case that it has agreed to hear if subsequent
events, necessarily outside the record, render the case moot, and
the determination of whether that condition has occurred is a matter
of federal law.
Liner v. Jafco, Inc. 375 U.S. 301 (1964).
With these
principles in mi11d, I conclude that we S1 auld dismiss this case for
lack of jurisdiction.
We granted certiorari in this case on November 19, 1973.
While we may then have faced
.d
~live
imex:v&Bea to alter1\ the situation.
controversy, subsequent events have
De Funis has been enrolled in the
University of Washington Law School since September of 1971.
His
academic performance has been creditable, and he has completed all
requirements for his J.D. degree save one quarter of study.
Regis-
tration for the spring quarter of 1974 was open from February 20
through March 1 of this year.
..
As his counsel has informed the Court
t ·1~J
.:j
i
.
2.
* Y letter dated
j
r't- i
~~
, 1974, DeFunis registered for
his final quarter on
, 197,
This event makes
operative the assurance given to the Court in respondents' memorandum
1f ~~on
t , J{
J'
mootness: "Counsel is further advised by the Dean of the law school
1
{ and we believe this Court should be advised) that if Mr. De Funis
~registers for the spring quarter under the existing order of this court
to March 1,
t
1974, that registration will not be
fi
:l!J
by
ji
1
'fJJ-. '
university regardless of the outcome of this litigation" (emphasis
added). Thus DeFunis will be allowed to complete his final quarter of
~ affir~ : r reverse the ju
~~ ~
~ .1
f~ t
~he
cancelled unilaterally
to magine orne totally unforeseen circumstance that would prevent
De Funis f
m
taking his degree in due
~1:-4
pt!Ff-~
course(~_.~·,
/-CJ
severe
~k f.!P"-rV-J~~]
illnes necessitating withdrawal -rom school), any such hypothetical
1
V" ~
(J .:;_r2_,_J
ent below. , WMleJ~ may be possible
~
)
),
w uld be sheer speculation unsupported by anything known to us at
/
7uY-
Y
~,}(. ~.,_.. trzd2l-~~~::J;;i:::f::;:~dv~
~~
..-r~
this ti\ne.;\ The fact tha~ a decision on the merits by this Court would
~~
not affect the legal relations of these parties._rems-to me the hall
of mootness.
3.
There is some suggestion in the memoranda of the parties
that this case falls within the relaxation of traditional mootness
standards for controversies that are "capable of repetition, yet evading
review. " Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515
(1911); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). Cf. Roe v. Wade,
410 U.S. ll3 (1973).
In my view this is not such a case. If, for example,
De Funis had lost rather than won in the trial court he would not have
been enrolled in the University of Washington Law School in the fall of
1971 and would not now
be past. the point
where a decision of this Court
.
.
would matter to him.
There is no reason to assume that future plain-
tiffs will be as successful as De Funis in obtaining all relief requested
I'
before this Court has a chance to rule on the matter.
Nor is there any
basis for the supposition that future attempts to litigate this question
will be as time-consuming as the instant case.
The university's appeal
to the Washington Stp reme Court was taken on October 21, 1971, but
the case was not decided until March 8, 1973--a delay of more than 16
months that surely cannot be
e
charac~rized
as normal or predictable.
Even if it were, this case would not now be moot if DeFunis had filed
a class action and had subsequently been joined as a representative
party by another applicant in a later year.
demonstrate tQ
..
my-=Sat~otien
These
hyp~cals
that this is not a recurring problem that
4.
will necessarily or even probably evade future review,. and the prececents dealing with that exception to the traditional mootness criteria
are inapplicable. I will therefore vote to dismiss.
'.
•
.'
No. 73-235 De FUnis v. Odegaard
'.
'~
1
~. :
The vote at the Conference on the issue of moot:ness was 4 to 4.
I passed, to afford an opportunity for more mature consideration on my
part.
As the docket sheets will show, I voted consistently to moot
this ease on the three occasions when we considered the petition for
eertiorart Five of us remained of the opinion that the case was moot
even after we had requested and received memoranda from counsel on
the mootness issue, and counsel for both parties had argued to the
contrary.
Having taken the case, received briefs from numerous parties
and heard argument, I am troubled now by a disposition which does not
address the merits. Of course, this has happened many times before.
Yet, this case has attracted national interest and it is predictable that
the Supreme Court, as an institution, will be criticized for taking a
course of action which will be viewed by many as a means of avoiding
a truly "sticky wicket". The extent and tone of the institutional
· criticism is likely to be exacerbated if we split 5 to 4 on the mootness
question.
The foregoing consideratioo.s prompted me to reexamine the
arguments - in additioo to the institutlmnall. ones - against mootness.
They add up pretty much, despite being able to find authority for almost
, any position on mootness, to theoretical assumptions about what ~ight
happen: -~· g:., the Board of Trustees of the University migilt-~epudiate
the Dean of the Law School's representation (through counsel) that
....·.J;
1
- 2, De Funis will be allowed to graduate even if the decision below is reversed.
''t,
I find it difficult to accept this as a real possibility.
,, .,
If, as I believed, the case was substantially moot when we
granted cert, it certainly is today. DeF\mis has now registered for
the final term. The Dean of the Law School has given what I think
fairly may be construed as assurance that the University of Washington
will not withhold DeFunis' degree if he completes his work satisfactorily.
Because De FUnis did not bring a class action that would have
enabled a subsequent plaintiff to join as a representative party and take
up his position, the case will be undeniably dead under any theory of
, mootness known to me when DeF\mis takes his degree in June.
i(:
Accordingly, I have decided -although with great reluctance
under the circumstances - to vote as I previously have: that the case
is moot.
.in.prttnt <.!fouri of tlft ~b' .i\tzdtg
..-uqmght~ ~. <!}:. 2'11~.1!>$
CHAMBERS OF
March 14, 1974
THE CHIEF .JUSTICE
PERSONAL
Re:
No. 73-235 - DeFunis v. Odegaard
Dear Lewis:
I share some, but not all, of your concern about
"mooting" a case after it is argued. There are several
answers that will satisfy the thoughtful but not the emotional
critics.
1. If we must decide a case because we
grant Cert, that places four Justices in a
position to force the Court to issue advisory
op1n10ns. The 11 tail 11 can 1t be allowed to wag
the "dog" to that extent.
2. We have cases that become moot between
a grant and oral argument or final decision.
3. Not infrequently we DISIG, and the mootness holding shares with such dismissal the
opportunity to see a case fully exposed.
The critics who would condemn us for a decision in
favor of DeFunis will doubtless be exorcized by a mootness
holding. It all depends on which student 11 is being gored. 11
Mr. Justice Powell
..
~tutt <!fomt .of .tlft ~b ~taft•
Jiaslfht\lhm, Jl. <!J. zog;~~
CHAMI!II!:RI!I 01"
March 14, 1974
THE CHIEF .JUSTICE
Re: 73-235 - DeFunis v. Odegaard
MEMORANDUM TO THE CONFERENCE:
Potter Stewart has agreed to draft a per curiam
opinion dismissing the appeal in the above case
as moot.
/
To: The Chief Justice
Mr. Justice Douglas
Hr. Justice Brennan
Hr. J:.L>tlce White
Hr. Justice r.hrshall
!tr · Ju~. ~lee Blc.c..t(mun
Mr • J 1 "t ~ cc Powell_..,
1st DRAFT
1c.
SUPREME COURT OF THE UNITED STAT' ,1..
v
v.
Charles Odegaard, President
of the University of
Washington.
[March
~T,
prcme Court of
ington.
Su~
Wash~
Hl74 j
PER CuRIAM .
In 1971 the petitioner. Marco DeFums. applied for
admission as a first-year student at the University of
Washington Law School, a state-operated institution .
The size of the incoming first-year class was to be limited
to 150 persons, and the Law School received some 1,600
applications for these 150 places. DeFunis was eventually notified that he had been denied admission. He
thereupon commenced this suit in a vVashington trial
court, contending that the procedures and criteria em~
played by the Law School Admissions Committee invidiously discriminated against him on account of his
race in violation of the Equal Protection Clause
of the Fourteenth Amendment to the United States
Co11stitution.
DeFunis brought the suit on behalf of himself alone,
and not as the represe11tative of any class, against the
various respondents, who are officers, faculty members,
and members of the Board of Regents of the 'University
of Washington. He asked the trial court to issue a
mandatory injunction commanding the respondents to
admit him as a m ember of the first-year class entering
in September of 1971. on the ground that the Law School
..
~
Recirculated:
-Gtt AppC"a] from the
R2hnquist
Stewa.. t, J.
Circulated:
No. 73- 235
Marco DeFunis et al.,
Petitioners,
Ju~tice
MAR 2 0 1974
------
73-235-PER CUHIA:\1
DEFUKlli v. ODEGAARD
2
admissions policy had resulted in the unconstitutional
denial of his application for admission. The trial court
agreed with his claim and granted thf' requested relief.
DeFunis was, accordingly, admitted to the Law School
and began his legal studies there in the fall of 1971.
On appeal, the Washington Supremf' Court reversed th~
judgment of the trial court and held that the Law School
admissions policy did not violate the Constitution. By
this time DeFunis was in his second year at the Law
School.
He then petitioned this Court for a wnt of certiorari,
and MR. JusTICE DouGLAS, as Circuit Justice. stayed the
judgment of the Washington Supreme Court pending
the "final disposition of the case by this Court.'' By
virtue of this stay, DeFunis has remained i11 law school,
and was in the first term of his third and final year when
this Court first considered his certiorari petition in the
fall of 1973. Because of our conceru that peFunis'
third-year standing in the Law School might have ren.cJered this case moot, we requested the parties to brief
the question of mootuess before we acted on the petition.
In response, both sides contended that the case was not
moot. The respondents indicated that, if the decision
of the Washington Supreme Court were permitted to
stand, the petitioner could complew the term for which
he was then emolled but would have to apply to the
faculty for permission to continue 111 th<> school before
he could register for another term. 1
We granted the petition for certiorari on November 19,
1973. The case was iu due course orally argued on
February 26, 1974.
rP::;pou~l' to the pPtJtion for crrtiorari, thp
that DrFu1n::; "w ill complPtf• hi~ third year
rof law ~c hool] nne! be ilW<tl'd('ct hi:-; ,). D. degrep Ht tlw end of the
1973-1974 academic yeHr rPgardb~ of the ontl'onw of thi~ appE-al''
1
By contra::;{, in their
rr::;pondent~
hnd
~tatNI
73-235-PER CURiAM
DEFUNIS v. ODEGAARD
3
In response to questions raised from the bench during
the oral argument, counsel for the petitioner has informed
the Court that DeFunis has now registered "for his final
quarter in law school." Counsel for the respondents
have made clear that the Law School will not in any
way seek to abrogate this registration.' In light of
DeFunis' recent registration for the last quarter of his
final law school year, and the Law School's assurance
that his registration is fully effective, the insistent que~­
tion again arises whether this case is not moot, and to
that question we now turn .
The starting point for analysis is the familiar proposition "that federal courts are without power to decide
questions that cannot affect the rights of the litigants
before them. " North Carolina v. Rice, 404 U. S. 244,
246 ( 1971). The inability of thf federal judiciary "to
review moot cases derives from the requirement of Art.
III of the Constitution under which the exercise of judicial power depends on the existence of a case or controversy." Liner v. Jajco, inc., 375 U. :-l. 301, 306, n. 3
(1964); see also Powell v. McCormack, 395 U. S. 486,
496, n. 7 (1969); Sibron v. 1\ "ew York, 392 U. S. 40, 50,
n. 8 (1968). Although as a matter of Washington state
law it appears that this case would be saved from mootness by "the great public interest in the continuing issues
raised by this appeal" Wn . - , - , P. 2d - ,
-. -, n. 6. the fact remains that under Art. III "[e]ven
in cases arising in the state courts, the question of mootness is a federal one which a ffderal court must resolve
2
In t hrir mrmorandum on thr qu<•:-;tion of mootn<'Hs, counsel for
the respondents unequivocHII~· stal<'d: "I ijf 1\lr. DeFunis regi~ters
for tlw ,;pring quartPr undrr the existing ord0r of this Court during
the rPgistration prriod from February 20, 1974, to l\Iareh 1, 1974,
that registration would not lw canet'i<'d unilaterally by thE' univer;;ity
regardle::>s of the onteonw of this litigation ''
..
73-235-PEH CURIAM
4
DBFUNIS v. ODEGAARD
before it assumes jurisdiction." North Carolina v. Rice,
supra, at 246.
The respondents have represented that. without regard
to the ultimate resolution of the issues in this case,
DeFunis will remain a student in the law school for the
duration of any term in which he has already enrolled.
Since he has now registered for his final term, it is evident
that he will be given an opportunity to complete all
academic and other requirements for graduation. and, if
he does so. will receive his diploma regardless of any
decision this Court might reach on the ments of th1s case.
In short, all parties agree that DeFunis JS now entitled
to complete his legal studies at the University of Washington and to receive his degree from that institutiou.
A determination by this Court of the legal issues tendered
by the parties is no longer necessary to compel that result,
and could not serve to prevent it. DeFunis uid not cast
his suit as a class action. and the only remedy he
requested was an injunction commanding his admission
to the Law School. He was not only accorded that
remedy, but he now has also been irrevocably admitted
to the final term of the final year of the law school course.
The controversy between the parties has thus clearly
ceased to be "definite and concrete" and no longer
"touch [ es l the legal relations of parties having adverse
legal interests." Aetna Life Ius. Co. v. Haworth, 300
u. s. 227. 240-241 (1937) .
It matters not that these circumstances partially stem
from a policy decision on the part of the respondent Law
School ,authorities. The respondents. through their
counsel, the Attorney General of the State, have professionally represented that in no event will the status of
DeFunis now be affected by any view this Court might
express on the merits of this controversy. And it has
been the settled practice of the Court. in cont<'xts no less
significant, fully to accept representations such as these
73-235-P:glt CURIAM
DEFUNIS v. ODEGAARD
as parameters for decision.
5
See Gerende v. Elections
Board, 341 U. S. 56 ( 1951); Whitehill v. Elki·ns, 389 U. S.
54, 57-58 (1967); Ehlert v. United States, 402 U. S. 99,
107 (1971).
There is a line of decisions in this Court standing for
the proposition that the "voluntary cessation of allegedly
illegal conduct does not deprive the tribunal of power to
hear and determine the case, i. e., does not make the case
moot." United States v. W. 7'. Grant Co., 345 U. S. 629,
632 (1953); United States v. Phosphate Export A.ssn.,
393 U.S. 199, 202-203 (1968). These decisions and the
doctrine they reflect would be quite relevant if the question of mootness here had arisen by reason of a unilateral
change in the admissio11s procedures of the Law School.
For it was the admissions procedures that were the target
of this litigation, and a volulltary cessation of the admissions practices complained of could make this case moot
only if it could be said with assurance "that there is no
reasonable expectation that the wrong will be repeated."
United States v. W. '1'. Grant Co., supra, at 633. Otherwise, " [ t Jhe defendant is free to return to his old ways,"
id., at 632, and this fact would be enough to prevent
mootness because of the "public interest in having the
legality of the practices settled." !d., at 632. But mootness in the present case depends not at all upon a "voluntary cessation" of the admissions practices that were the
subject of this litigation. It depends, instead, upon the
simple fact that DeFunis is now in the final quarter of
the final year of his course of study, and the settled and
unchallenged policy of the Law School to permit him to
complete the term for which he is now enrolled.
It might also be suggested that this case presents a
question that is "capable of repetition, yet evading;
review," Southern Pacific Terminal Co. v .. ICC, 219 U. S.
498, 515 (1911); Roe v. Wade, 410 U.S. 113, 125 (1973) ,.
and is thus amemable to federal adjudication even
..
73-~35-PER CURIAM
6
DEFUNIS v. ODEGAARD
though it might otherwise be considered moot. But
DeFunis will never again be required to run the gantlet
of the Law School's admission process, and so the question is certainly not "capable of repetition" so far as he
is concerned. Moreover, just because this particular case
did not reach the Court until the eve of the petitioner's
_graduation from law school, it hardly follows that the
issue he raises will in the future evade review. If the
admissions procedures of the Law School remain unchanged, there is no reason to suppose that a subsequent
case attacking those procedures will not come with relative speed to this Court, now that the Supreme Court of
Washington has spoken. This case, therefore, in no way
presents the exceptional situation in which the Southern
Pacific Terminal doctrine might permit a departure from
"[t]he usual rule in federal cases ... that an actual controversy must exist at stages of appellate or certiorari
review, and not simply at the date the action is initiated."
Roe v. Wade, supra, at 125; United States v. Munsingwear, Inc., 340 U. S. 36 (1950) .
Because the petitioner will complete his law school
studies at the end of the term for which he has now
registered regardless of any decision this Court might
reach on the merits of this litigation, we conclude that
the Court cannot, consistently with the limitations of
Art. III of the Constituti0n, co1isider the substantive
constitutional issues tendered by the parties. Accordingly, the judgment of the Supreme Court of Washington is vacated, and the cause is remanded for such
proceedings as by that Court may be deemed appropriate.
I
It is so ordered.
.inprtutt C!f4lltrl of tqt ~b .jtatt•
Jfa.ltinghtn. ~. OJ. 2llbi'!-$
CHAMBERS 01'"
THE CHIEF .JUSTICE
Re:
March 26, 1974
No. 73-235 - DeFunis v. Odegaard
Dear Potter:
Please join me in your Per Curiam opinion in the
above case.
Mr. Justice Stewart
Copies to the Conference
..
.iuvrtlttt QJttud ttf tlrt ~ttittb ~tate a
'man~tt. gl.
QJ. 2ll,5't~
C.HA!'I.B.!';RS O F
JUSTICE BYRON R. WHITE
March 27, 1974
Re:
No. 73-235 - DeFunis v. Odegaard
Dear Bill:
Please join me.
Sincerely,
~
Mr. Justice Brennan
Copies to Conference
•
\
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r .
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CHAMBCRS OF"
March 28, 197 4
JUSTICE THURGOOD MARSHALL
Re: No. 73-235 -- DeFunis v. Odegaard
Dear Bill:
Please join me.
Sincerely,
.,-1
c-!111
T.M.
Mr. Justice Brennan
cc: The Conference
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No. 73-235 DeFunis v. ~ Odegaard
-~-------·-·'-
JK/gg
7-14-75
MEMORANDUM
TO:
Mr. Justice Powell
FROM:
Joel Klein
DATE:
July 14, 1975
DeFunis Moot Court
I am writing this as I prepare to leave and, as you
might expect, it is being done with perceptible dispatch.
Thus you will understand if it lacks the typical insight and
acumen that heretofore has marked my work.
I have assembled the briefs, our office file and the
recent Columbia Law Review symposium on DeFunis.
be more than enough.
This will
Our set of briefs apparently has been
burned so I have borrowed the library set.
The best briefs
were written by Professors Bickel and Kurland for DeFunis'
position and by Professor Cox for the other side.
The questions I would propose are:
1.
Does DeFunis have standing to raise this challenge?
Is it sufficiently clear that, but for the racial preference,
he would have been admitted?
(After Warth this is an important
question, although I suspect one would conclude that DeFunis
had standing.)
2.
Is any state-imposed classification based on race
per se unconstitutional?
If not, do all such classifications
require a compelling state interest to justify their purpose?
I
2.
Is there any distinction between a racial classification
favoring a minority group from one that disfavors the minority?
(On this last question John Ely at Harvard has written an
article suggesting that the suspect classifications doctrine
should apply only to classificatiomthat discriminate against
a clearly defined insular minority.)
3.
If a compelling interest is required, what kinds of
interests will suffice?
What are the interests alleged by
the university in this case?
4.
How do such interests stack up?
Is there any constitutional distinction between
a legislatively drawn classification and an administrative
classification such as the one at issue here?
If there is a
distinction, should greater or lesser precision be required
of the legislature?
5.
If DeFunis prevails in this case does that mean
that all minority preference schemes are invalid?
Would t his
mean that Title VII's affirmative action programs would be
invalid?
Is there any distinction in the fact that Congress
has broad powers to implement the goals of the Fourteen th
Amendment?
See Katzenbach v. Morgan.
Does anything turn on
the fact that under Title VII there must first be a finding
of a history of prior discrimination?
made here?
Has such a showing been
If the university in question had been shown
previously to have discriminated would that affect the outcome?
3.
6.
Would this case be any different if the university
used cultural deprivation rather than race as a factor for
admission?
Precisely what limitations may be placed on
university admission policies?
Is the university in this case
doing anything different from most universities other than
explicitly stating that rat e per se is a factor.
7.
What are the costs of getting the federal courts
involved in university admission policies? . Should every
allegation of discrimination - be it against blacks, women,
Indians, or what have you - in admission to state universities
be cognizable under § 1983?
Should the administrators be liable
for damages if a case of discrimination have been made out?
(This raises some of the Wood v. Strickland concerns that are
obviously not too far in the background i f DeFunis prevails~
JK
JUSTICE
J, -:r_P
Jamee D. Wilson-Newsweek
Law class in California: Are whites being discriminated against?
Racism in Reverse
For almost a decade-a decade of unprecedented racial and social tumultthe issue lay untouched, rather like .a
bomb that could be removed only if
someone set the fuse. Last week, the
fu se was finally set. The U.S. Supreme
Court heard arguments on one of the
most critical civil-rights issues of the
1970s: docs the Fourteenth Amendment
(which was framed to help relieve discrimination against blacks) prohibit special preferences in favor of blacks, if such
pref crcnces discriminate against white
people on account of their race? In short,
is "reverse discrimination" constitutional?
The casr, in point, DeFunis v. Odegaard, was filed by a white student at
the University of Washington, who claims
he was denied admission to the university's law school to make room for lessqualified blacks. nut this is a gut issue
that reaches far beyond university-admissions policies. The Court's decision,
which is expected in a month or two,
stands to have a profound effect on the
job market. It will affect every white who
believes that a black was given a racial
preference in getting a job or a promotion - and every man who thinks that he
was unfairly passed over in favor of a
woman. The DcFunis suit could prove a
direct challenge to the "affirmative action" concept outlined in the 1964 Civil
Highls Act to increase the employment
of minorities in almost every segment of
American industry.
The central figure in the case is Marco
DcFunis, 22, a Phi Beta Kappa graduate
of the University of Washington, who
filed his suit in 1971 (against university
presidPnt Charles Odegaard and others)
after the law school failed to admit him.
DeFunis established that 36 minority
students had been admitted although
their college grades and Law School
Admission Test scores were inferior to
his. A trial court in Seattle found that
DeFunis had been deprived of equal
protection of the law under the Fourteenth Amendment and ordered the
school to enroll him.
The university complied (DeFunis is
scheduled to graduate in June), but to
protect its admissions policies it appealed, and the state supreme court upheld the school. The university argued
successfully that DeFunis was a marginal
candidate, that 29 whites who had better scores than J,e were also rejected
and that 38 whiles with scores lower
than DeFunis had been admitted. This
proved, the law school contended, that it
did not make decisions on grades and
test scores alone-that such other factors
as where the student was from, personal
recommendations and extracurricular activities were also given due weight. The
school's lawyers also argued that a student's race was one factor in enriching
the diversity of the student body and
that increasing the number of minority
students would help add to the shockingly low number of minority lawyers in
the state and the nation.
Equals: In effect, the law school maintained that almost all of the 1,601 candidates for the 150 places in DeFunis's
class were qualified and that it was
choosing among equals. But the fact remains that many of the minority applicants were a:m1Ued wttFi gradE's and
test 'SCores-be w1e lormal cutoff point
for Wliites. The school even conceded
that in its admissions process it actually
put minority candidates (blacks, chicanos, Philippine-Americans and American
Indians) in a JreParatetlOOR for special
consideration. ''W'tia~ersity did,"
DeFunis's lawyer Josef Diamond told the
Supreme Court, "was admit two classes,
not one."
As DeFunis's attorneys hinted, such a
guarantee of places for minorities raised
the ugly specter of a "quota" system.
And it provoked a brilliantly reasoned
amicus curiae brief supporting DeFunis,
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w1illen ior tho Anli-JJclamalion League
of B'nai B'rith by Prof. Philip Kurland of
the University of Chicago and Prof. Alexander Bickel of Yale. The Anti-Defamation League, which has fought long
and hard for black equality as well as
for its principal Jewish constituency,
found itself on the other side this time
because of the presumption that many
Jewish students may in the future be
sacrificed to minority preferences. "The
numerus clausus, the racial quota that is
involved in this case," wrote Kurland and
Bickel, "is of particular concern to the
Jewish minority in this country because
of the long history of discrimination
against Jews by the use of quotas ...
After only 30 or 40 years of open admissions, the universities which, for centuries, set the style in excluding or
restricting Jewish students may again be
able to do so."
Talent: DeFunis has a host of other
allies. They include the Joint Civic Action Committee of Italian-Americans, the
Advocate Society (a Polish-American
lawyers' association), the AFL-CIO, the
National Association of Manufacturers
and the U.S. Chamber of Commerce. In
all, nearly three dozen "friend of the
court" briefs, on behalf of nearly 100
organizations, have been filed on both
sides of the DeFunis case.
Erstwhile special ':Proseoutot Archibald ·
Cox and the former deans of the Yale ·
and Harvard law schools, Louis Pollak
and Erwin Griswold, all have filed briefs
defending the University of Washington.
They were joined by such groups as the
American Bar Association, which cited
its efforts to increase the proportion of
U.S. lawyers who are black (now 1 per
cent, compared to a 12 per cent black
population), the National Urban Coalition and the battalion of other educational institutions, including the national
associations of both law schools and medical schools.
For th'eir part, the universities and
professional schools concede that they
go out of their way to increase minority
enrollment. But they contend that this is
part of a natural effort to get a good mix
of students-just as in the past they have
admitted children of rich alumni and
220-pound running backs with doubtful
academic credentials. In his cogent brief
. on behalf of Harvard, Cox spelled out
~ the goal of a diverse student body. "If
: scholarly excellence were the sole or
even predominant criterion, Harvard College would lose a great deal of its vitality
; and intellectual excellence," Cox argued.
! "A farm boy from Idaho can bring some~ thing to Harvard College that a Bostoni·an cannot offer. Similarly, a black student
can usually bring something that a white
person cannot offer. The quality of the
educational experience of all the students ... depends in part on these differences in the background and outlook
that students bring with them."
Representing the university before the
Supreme Court, Washington Attorney
General Slade Gorton pointed out that
without special treatment of minorities,
DeFunis's class would have been "lily
white." The Bickel-Kurland brief bridled
at the implicit suggestion that some form
of "reverse discrimination" is constitutionally permissible. "Those for whom
racial equality was demanded arc now
to be more equal than others," the professors argued. "Having found support
in the Constitution for equality, they now
claim support for inequality under the
same Constitution."
It is a sign of the merits on both sides
that few observers are confident of the
outcome. Perhaps the Supreme Court
will find its own compromise. It could
approve generally the university's affirmative-action efforts, while disapproving
quotas and denying that they even exist
)
I
DcFunis: Setting the fuse
in this case. "Hard cases," it is often said,
"make bad law." DeFunis is clearly a
hard case, and whichever way it goes, a
great many people seem sure to consider
the outcome bad law.
-JERROLD K. FOOTLICK
Hoffman v. the Lord
Chicago's irascible 78-ycar-old Judge
Julius J. Hoffman is rapidly turning into
one of the most :flamboyant judicial losers
of recent years. Hoffman presided over
the trial of the Chicago Seven-and then
saw the convictions reversed on appeal.
Next, an appeals court dismissed most
of the contempt citations Hoffman meted out in that trial. Now another Hoffman ruling has been upset-this time in
the interest of romance.
Hoffman promised a young lawyer
that he would suspend a trial so that the
lawyer could be married and take a
two-week honeymoon. "I don't want to
interfere with the work of the Lord,"
the judge smiled. Then, three days
into the trial-with no explanation-he
changed his mind. "I don't shut do1n1
the U.S. district court even for the Lord,"
Hoffman proclaimed. The lawyer then
rushed to the U.S. court of appeals. In a
matter of hours, the appellate court
ruled for the lawyer, the Lord and love
-and the honeymoon began on schedule.